A05-2450

State of Minnesota,

Appellant,

vs.

Timothy Dowane White,

Respondent.

Filed June 13, 2006

Reversed and remanded

Worke, Judge

Olmsted County District Court

File No. K4-03-639

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, 151 Fourth Street S.E., Rochester, MN 55904 (for appellant)

John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

U N P U B L I S H E D O P I N I O N

WORKE, Judge

On appeal from a sentence imposed for aiding and abetting controlled-substance crime in the third degree, the state argues that because respondent had a prior controlled-substance conviction, the district court had no discretion to stay execution of respondent’s sentence, and it erred in construing Minn. Stat. § 152.023, subd. 3(b) (2002), to allow the dispositional departure. Because respondent had a prior controlled-substance conviction, the district court did not have the discretion to stay the execution of respondent’s sentence, and we therefore reverse and remand for resentencing consistent with Minn. Stat. § 152.023, subd. 3(b).

D E C I S I O N

The state argues that the district court did not have the authority to stay execution of respondent Timothy Dowane White’s sentence and place him on probation because respondent’s current conviction was a “subsequent controlled substance conviction,” which requires that respondent be “committed to the commissioner of corrections for not less than two years nor more than 30 years[.]” Minn. Stat. § 152.023, subd. 3(b) (2002). Further, Minn. Stat. § 152.026 (2002) states, “[a] defendant convicted and sentenced to a mandatory sentence under sections 152.021 to 152.025 and 152.0262 is not eligible for probation, parole, discharge, or supervised release until that person has served the full term of imprisonment[.]” Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

This issue was addressed in State v. Bluhm, 676 N.W.2d 649 (Minn. 2004). In Bluhm, the supreme court analyzed whether a defendant convicted under Minn. Stat. § 152.025 (2002) (controlled-substance crime in the fifth degree), with a previous qualifying controlled-substance conviction, must serve a mandatory minimum sentence. Bluhm, 676 N.W.2d at 650. Upon the defendant’s guilty plea in Bluhm, the district court stayed imposition of the defendant’s sentence, placed her on probation, and required her to serve six months in jail. Id. The supreme court held that Minn. Stat. § 152.025, subd. 3(b), requires a mandatory minimum six-month jail term to be imposed and served when an offender has a previous qualifying controlled-substance conviction. Id. at 654. Specifically, the supreme court held that “the language of sections 152.025 and 152.026 is clear and unambiguous” and that “section 152.025 clearly mandates the minimum sentence to be served and section 152.026 specifically excludes the consideration of probation until the minimum term has actually been served.” Id. at 653.

Respondent was convicted of aiding and abetting a controlled-substance crime in the third degree, in violation of Minn. Stat. § 152.023, subd. 1(1) (2002). Minn. Stat. § 152.023, subd 3(b), states:

If the conviction is a subsequent controlled substance conviction, a person convicted under subdivision 1 or 2 shall be committed to the commissioner of corrections for not less than two years nor more than 30 years and, in addition, may be sentenced to payment of a fine of not more than $250,000.

With the exception of the length of the sentence to be imposed and the fine amount, this language is exactly the same as that found in Minn. Stat. § 152.025, subd. 3(b) and addressed in Bluhm. Because respondent was convicted of a controlled-substance crime in October 2001, the current conviction qualifies as a “subsequent controlled substance conviction.” Following the supreme court’s analysis in Bluhm, Minn. Stat. § 152.023, subd. 3(b), mandates that a defendant convicted of a subsequent controlled-substance conviction be committed to a local correctional authority to serve, at a minimum, a two-year sentence, and that probation may not be imposed in lieu of serving the two-year sentence.

Finally, Minn. Stat. § 152.152 (2002) states that when an individual is convicted under Minn. Stat. § 152.023 and the sentencing guidelines call for a presumptive sentence, the district court may stay imposition or execution of the sentence “based on amenability to probation only if the offender presents adequate evidence to the court that the offender has been accepted by, and can respond to, a treatment program[.]” The district court did not stay the execution of respondent’s sentence based on Minn. Stat. § 152.152. And even if the district court had used Minn. Stat. § 152.152, it would have been inappropriate in this case. The record shows that respondent was not amenable to probation—he was uncooperative with probation during preparation of the presentence investigation and tested positive for illegal substances between the plea and sentencing—and he failed to present any evidence that he had been accepted by and could respond to a treatment program.

Based on Bluhm, which involved language virtually identical to that applicable here, the district court did not have discretion to stay execution of respondent’s sentence and place him on probation.

Reversed and remanded.